photographing art and copyright issues

sineadw

In order to successfully avoid doing my college assignments I've been mulling over images I could use for the Smithsonian Magazine competition, in particular the 'americana' section. I was toying with submitting one of the many double bass shots I have. The problem is a lot of them are customised (which is what draws me to them in the first place). Take this one for example:



Not the best shot in the world, but it got me thinking. I had permission from the (very drunken) bass player to take and publish the shots on Flickr. If, hypothetically speaking of course, I were to submit this and it was published by them could that land me in trouble with the original bass artist? Or does the artwork belong to the bass player? Would I have to seek additional permission to enter it into the competition?

Its not just the basses - I'm dragging myself off to the Speedfreaks Ball this weekend, hoping to get lots and lots of shots of the amazing tattoos these guys have. Who owns copyright on them??

Also, whilst I obviously can't wander into the Louvre, take a snap of the Mona Lisa and accredit myself with an original piece of art, when does a photo containing art become original art in its own right? Like when musicians sample works of others in their own songs.. (that was ruled as separate from the original song - think it was the Beastie Boys who fought the case that set the precedent).

Just wondering. I'm gonna run up against this a lot. Can anyone enlighten?

Paulw

The photographer always owns the copyright for any image taken. Permission to use the photo is another issue.

With the photo in question, I don't believe you would have any problems using it. The person is not directly and clearly identifiable in the photo.

Each country has different laws when it comes to copyright and also things like the right to privacy and model releases. In Ireland, you don't automatically have a right to privacy. But, if the photograph was taken inside, then this is a very confusing area.

I've spoken to a solicitor a few times about such issues, and it seems that there is no crystal clear case law.

For the Smithsonian competition, I would assume they require a model release, due to US law.

Not sure if any of this really helps you.

Thirdfox

I'll have a crack at this... from my limited knowledge of intellectual property rights you have copyright to the image but they have copyright to the item.

Basically they can't profit from your image of them without your permission and you can't profit from your image of them without their permission. i.e. an artist does a painting - you photograph it. Now the artist can't take that image and sell it even though it is his painting (since you took that picture), conversely you can't take your picture and sell it (since he owns the rights to the painting).

In your situation with the bass - potentially the person who did the work could pursue you in court but
a) it's unlikely they'll see the image in the first place if it's been entered into a photo comp on the other side of the world.
b) they would probably enjoy the publicity and these small things probably would never end up in court (or be settled way before the lawyers start speaking - doesn't make financial sense to have a storm in a teacup).
c) this permission they gave you - is it in writing? If it is then you're fine (although their lawyers could argue that compos mentis (of sound mind) was not present for a contract to be signed) if just oral then it isn't worth the paper it's written on

now for the standard disclaimer (repeated in my signature below ):
all that I've said above is absolute rubbish and not to be relied on at all - always seek professional legal advice if in doubt. ...This way no-one can sue me if I got something wrong

Thirdfox

Paulw wrote: »

The photographer always owns the copyright for any image taken. Permission to use the photo is another issue.

With the photo in question, I don't believe you would have any problems using it. The person is not directly and clearly identifiable in the photo.

Each country has different laws when it comes to copyright and also things like the right to privacy and model releases. In Ireland, you don't automatically have a right to privacy. But, if the photograph was taken inside, then this is a very confusing area.

I've spoken to a solicitor a few times about such issues, and it seems that there is no crystal clear case law.

For the Smithsonian competition, I would assume they require a model release, due to US law.

Not sure if any of this really helps you.

I don't think she is talking about the person (which as you say is not clearly identifiable) but rather the customised bass (which could be considered an original work of art by some).

and to correct one small point - the photographer sometimes does not own copyright to his/her own image if s/he was employed to take that photo and the contract had stated that the company owns all copyright.

As regards to right to privacy - the ECHR covers this and in general most European countries have similar protections. (our constitution also has provisions - but ECHR is superior to the constitution in many ways).

Thirdfox

Almost forgot to add: nice picture!